Interpretation of the Statutory Modification of Joint and Several Liability: Resisting the Deconstruction of Tort Reform

JurisdictionWashington,United States
CitationVol. 16 No. 01
Publication year1992



Interpretation of the Statutory Modification of Joint and Several Liability: Resisting the Deconstruction of Tort Reform

Gregory C. Sisk(fn*)

I. Introduction

In 1986, the Washington Legislature adopted a broad reform of the principles governing tort liability law. The Tort Reform Act of 1986(fn1) was the most far-reaching legislative revision of tort law in Washington state history, and perhaps in the nation.(fn2) The legislation established dramatic changes in the rules governing civil actions for tort recovery, ranging from such basic concepts of liability law as the doctrine of joint and several liability among tortfeasors(fn3) and the maximum amount of damages recoverable,(fn4) to matters concerning the waiver of the physician-patient privilege in personal injury cases(fn5) and limited immunity for directors and officers of certain charitable organizations.(fn6) In sum, the compendium of modern tort law principles adopted in the 1986 Act "cast a heavy shadow on the common law"(fn7) of liability in Washington.

The Tort Reform Act was enacted by overwhelming majorities of both houses of the state legislature,(fn8) and the tort reform movement has received strong support from the public.(fn9) However, within the legal community, reform of the rules governing civil liability has remained sharply controversial. Following the enactment of the legislation, the field of battle over tort reform has shifted from the political to the legal, from the legislature to the courts. In 1989, the Washington Supreme Court struck down a provision in the Act(fn10) that placed a ceiling on the amount of non-economic damages that could be awarded.(fn11) A divided court declared the cap on damages to be an improper infringement upon the jury's role of determining an appropriate award of damages. The court therefore invalidated the provision as a violation of the state constitutional right to a jury trial.(fn12) Many other significant reforms in the legislation have also been the subject of constitutional dispute, first in the law review literature(fn13) and increasingly in the courts.(fn14)

The centerpiece of the Tort Reform Act of 1986, and the provision with the greatest effect upon liability law, is Revised Code of Washington (RCW) 4.22.070.(fn15) In this single section of the Act, the Washington Legislature established a new foundation for tort liability-one of individual responsibility in direct proportion to individual fault. RCW 4.22.070 significantly modifies the application of joint and several liability against joint tortfeasors, particularly (but not only) in circumstances where the plaintiff is also at fault. Not surprisingly, opponents of the path taken by the Washington State Legislature have focused their greatest energies against this provision. The region's law reviews, as well as other legal periodicals, have published numerous articles discussing the provision, its merits, its weaknesses, and its validity.(fn16) The various and sundry constitutional objections raised-and the strength of those objections- to the modification of joint and several liability have been addressed elsewhere.(fn17)

Opponents of the legislative changes to joint and several liability have recently opened a new front in the war on tort reform, emphasizing their struggle against the modification of joint and several liability. In addition to the frontal constitutional challenge to the validity of RCW 4.22.070, the opponents of tort reform in the plaintiff's bar initiated a flanking maneuver to destroy the statute through suggested interpretive models that would drain the provision of its reforming energy.(fn18) Although commentators from all points of view were originally in general agreement on the meaning of the statute's basic provisions,(fn19) creative tort law advocates have now begun formulating alternative theories of statutory interpretation designed to dismantle the reforms. From this new deconstructionist perspective, RCW 4.22.070 is portrayed as either a modest and insignificant provision with limited application, or as a hopelessly ambiguous statute that should be narrowly construed to preserve the basic concepts of full joint and several liability in Washington. In addition to the statutory "disinterpretation" strategy, members of the plaintiffs' bar within the state bar association have campaigned for changes in the court rules of civil procedure. Specifically, those changes seek to impose upon defendants an early burden of raising by pleading the issue of fault allocation among all potentially responsible tortfeasors.

This Article is offered in defense of RCW 4.22.070 and in opposition to the deconstruction of legislative tort reform. My premise is that the legislature did indeed intend to accomplish a significant reform of the liability system and to take a long, purposeful stride toward the implementation of comparative fault as applied to all parties in tort litigation. Moreover, I conclude that the legislature adopted language that adequately, if sometimes imperfectly, achieves that purpose.

My thesis is this: Proposed interpretations of the statute that serve to undermine the guiding principle of comparative fault in liability are not in accord with either the plain language of the provision or the history of its enactment.(fn20) That is not to say that there are no gaps left to be filled. On occasion, the courts must apply the 1986 modification of joint and several liability in contexts that are also regulated by other legislative enactments. The workers' compensation statutory scheme(fn21) and the section of the earlier 1981 product liability act providing relief to retailers from liability for defective products are examples of other statutory provisions(fn22) that must be coordinated with the 1986 adoption of comparative fault. Nevertheless, the essential framework of RCW 4.22.070 can readily be discerned from the language of the statute, and it does not plausibly lend itself to the unusual interpretations offered to preserve the broader liability rules that previously prevailed in Washington common law.

The subject of this Article is statutory interpretation. In particular, I discuss the following: the meaning of "fault" as applicable through RCW 4.22.070;(fn23) the nature of the entities to whom fault must be allocated;(fn24) the responsibility for raising the culpability of an unjoined entity and the burden of proof on allocation of fault;(fn25) the manner in which damages are to be apportioned among the culpable parties;(fn26) the separate rule for parties acting in concert or as agents;(fn27) the limited form of joint and several liability that applies when the plaintiff is without fault;(fn28) the provisions for settlement and contribution under the statute;(fn29) and the three exceptions to the statute.(fn30)

In addition, I examine two areas in which RCW 4.22.070 must be read in conjunction with other statutes so as to give the fullest possible effect to both legislative enactments. First, I outline a recent Washington Supreme Court decision concerning the application of comparative responsibility principles to the workers' compensation program.(fn31) In Clark v. Pacificorp, the court held that the state government's right to reimbursement of industrial insurance benefits from an injured employee who recovers from a third person must be proportionately reduced.(fn32) Such a reduction occurs when fault is allocated under the Tort Reform Act to the employer who is immunized from liability under the workers' compensation system. Second, I look at the application of the comparative fault principles of the 1986 modification of joint and several liability in the context of the 1981 retailer relief provision, which granted broad relief to retailers but left them exposed to liability in certain circumstances, such as when the manufacturer of a product was insolvent.(fn33) Lastly, I offer some ruminations on the future course of the common law as it develops with respect to joint and several liability in those few areas that fall outside the express mandate of the 1986 statute.(fn34)

Other than as it bears on interpretation of the statute, the constitutional validity of RCW 4.22.070 is not addressed in this Article. That subject has been thoroughly examined in previous publications, including one that I authored.(fn35) The legislature has adopted the statute. I believe the supreme court will uphold it. In my view, and for good or for ill, RCW 4.22.070 will remain the law of the State of Washington for the foreseeable future.

II. RCW 4.22.070: Background and Summary

A. The Road to Tort Reform: Joint and Several Liability and the Expansion of Tort Liability

Under the common law doctrine of joint and several liability, a plaintiff asserting a cause of action in tort was entitled to pursue any or all responsible tortfeasors and thereafter collect any part or all of the judgment against any one or more of the defendants found to have contributed to the personal injury or property damage.(fn36) In other words, each individual defendant-however slightly at fault in comparison to other defendants-was liable for the entire amount of the damages awarded to the plaintiff.(fn37) At the same time, a plaintiff who was found also to have been at fault, and thus to have contributed to the event that...

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